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This truly is a process that encourages one to scream at times. I’m reading various cases (this time, using the fabulous search tools at the Canadian Legal Information Institute. I’m finding their linkage tools (“find cases that cite this case”) to be invaluable.

Of course, the downside to this is that I’m likely torturing myself through this process. Because in this case (Rashid v MCI) the applicant‘s application was rejected. A careful reading of the logic suggests that it could be applied to my case.

The judge did certify a question in this case, one that had it been answered would likely have direct bearing upon my case:

When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of “excessive demand” as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant’s ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?

This question directly squares with my own situation. Rashid however failed because he did not already have the necessary insurance in place. Thus, interpreting the current jurisprudence it would seem that in order to be successful proving an insurance based plan to mitigate excessive demand one would have to already be inside Canada and the insurance must already be in place.

The CIC medical officer in my case added an additional requirement: one must already be using the insurance, in order to assuage her (after the fact) concerns that the insurance truly will pay the prospective costs.

Indeed, it is this continual raising of the bar that makes me grudgingly question if this isn’t really not about procedural fairness but rather more about “let’s just make it difficult for anyone ‘undesirable’ to immigrate to Canada.” Frankly, very few people will take their case to the Federal Court of Canada in a case like this. I suspect that most abandon their case at the point they get the fairness letter. “Oh well, we didn’t make it.” Some respond and of them a few actually work with an experienced attorney to craft an intelligible response. At that point, how many people will continue to challenge the system?

Finally, even if they are successful at challenging the system, what do they win? After all, their application is just sent back to CIC for consideration by another officer. From what I can tell, that doesn’t seem to be successful in most cases anyway.

Is there any wonder that this really looks more like a scheme to provide the veneer of respectability over what is, at its heart, primarily based upon bias?

I know I’m overthinking the process at this point. I’m using different search terms to look at various court decisions. My latest search turned up several hundred decisions and I’ve started by looking at very recent (2012) decisions.

One of these is Noh v MCI (2012 FC 529)an interesting H&C decision for a family who overstayed their visitor visas and are now trying to obtain permanent residency. Cases such as this one are held up as an example of how the immigration system is broken. Their children (now both over 18) have lived the past 8.5 years in Canada, going to school and even University here. The parents are using their children’s needs as part of the rationale for why they should be allowed to remain in Canada. I’ll leave it to the reader to decide if they should be allowed – or not – because that isn’t what caught my eye as I read the decision.

[20] A decision-maker’s reliance on undisclosed extrinsic evidence is a breach of procedural fairness (see Tariku v Canada (Minister of Citizenship and Immigration) 2007 FC 474 at paragraph 2 and Qureshi v Canada (Minister of Citizenship and Immigration) 2009 FC 1081 at paragraph 14). Likewise, the opportunity to respond to a decision-maker’s concerns is also an issue of procedural fairness (see Karimzada v Canada (Minister of Citizenship and Immigration) 2012 FC 152 at paragraph 10 and Guleed v Canada (Minister of Citizenship and Immigration) 2012 FC 22 at paragraphs 11 and 12.

To be honest, I’ve been thinking that the issue the medical officer raised in her affidavit (the text she didn’t have in her original notes but recalled nine months after the fact) was a “reasonableness” standard but after reading this I begin to think that in fact this is an issue of law and thus must be judged on a standard of correctness.

The standard of correctness is a much higher standard than reasonableness and there is no deference given to the tribunal for decisions on the correctness standard – while there is such deference given on the reasonableness standard.

[24] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration)v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

The decision still falls short, because even if one accepts the medical officer’s opinion that the insurance wouldn’t provide coverage, it fails to address the PHSP that covers any legitimate medical expense.

The Companioni decision set the bar fairly high – so high that it is extremely difficult for anyone not already inside Canada to reach. Despite this, I put together a plan that I maintain anyone objectively reviewing the evidence would conclude actually met that rather high bar – it was a choate plan, the biggest concern voiced by the judge in that case. It did not rely upon a personal promise to pay, either, another potential issue. And, it demonstrated more than adequate funding to pay for a huge amount (approximately $68,000).

I seriously doubt that an impartial reviewer using the reasonableness standard would agree with the original rejection because if this plan cannot pass muster, no plan could pass muster and thus this whole process is a charade. Just reject people in my position categorically.

But what I submit really happened (where “really happened” means “on a balance of probabilities”) is that the plan was ignored. The rationale for that now are concerns that had never previously been voiced. Rather than bolstering the government’s case, it actually damages their credibility. Perhaps that is why thus far the government hasn’t really presented any actual legal argument against this application. My best guess is that they will do so in their filing on the 28th – complete with the advantage of providing us with no opportunity to reply.

As usual, it’s a waiting game. 39 days to go – for the hearing. Nobody knows how long until the decision.

It’s been several weeks since I reviewed the recent court decisions. I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507). It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well. At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS Internationaland they agreed to continue providing him with the drugs, even if he were to immigrate to Canada. He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis. The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable. Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days. While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Last night I received a copy of the actual application that my attorney filed with the court. It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file. I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information. Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.

Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“). The legal arguments for review consist of five different points:

The medical officer did not make an individualized assessment

The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns

The medical officer’s reasons for her decision are inadequate. In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances

The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces

After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do. The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care. The fifth argument is one that remains unsettled in Canadian jurisprudence.

My initial sense after reading this was that the first three arguments really do merit review. The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case. Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC. That would seem to make things easy for CIC – blanket rejection. Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach. The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)

It is, however, the last two arguments that are the more intriguing. The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.) It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf. There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet. Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation. The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties. In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government. If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?

The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years. The arguments the attorney put forward are actually well-developed.

I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge. My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application. At least that’s my hope.

Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down. There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)

If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books. I realize that’s a long shot. It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns. Under review, they can all be addressed (or some can be ignored.)

A positive decision on narrow grounds would simply return the file to CIC for further consideration. In that case, with two applications in process, I’ll gladly take the one that comes first. A negative decision on this application won’t affect the application in process.

A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA. Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.) As I have mentioned before, there is a certain level of notoriety with a successful decision. I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.

Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.

March 30: Respondent’s deadline. I expect them to respond and disagree with our position. I give a small chance to them assenting to the first points and disagreeing with the latter few points. If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.) I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.